Watch Out–State Courts May Be Stricter Than Federal Courts In Interpreting Federal Tolling Provision
When it comes to interpreting federal law, state courts in the Sixth Circuit usually look to the Sixth Circuit Court of Appeals. But state courts are free to disagree, as an Ohio appellate court demonstrated recently in Smith v. Erie County Sherriff’s Department, where it unambiguously rejected the Sixth Circuit’s reading of 28 U.S.C. 1367(d).
Section 1367(d) provides that the statute of limitations for state law claims brought in federal court under supplemental jurisdiction “shall be tolled while the claim is pending and for a period of 30 days after it is dismissed.” In In re Vertrue Inc. Marketing and Sales Practices Litigation, the Sixth Circuit adopted the most generous reading of this provision, the so-called “suspension approach,” holding that the running of the limitations period is suspended until 30 days after the federal court’s dismissal of the claims. For example, under the suspension approach, a plaintiff who files a state law claim in federal court on day 10 of a 180-day limitations period will have an additional 200 days (30 + 170) to file the claim in state court after the federal court dismisses it, regardless of how long the case was pending in federal court.
In Smith, an Ohio appellate court discussed Vertrue extensively before rejecting its holding, and choosing to interpret Section 1367(d) under the stricter “extension” approach, which allows the state limitations period to be extended to 30 days after federal dismissal, but does not toll the running of the state limitations period. Under this approach, Section 1367(d) merely extends the limitations period until 30 days after federal dismissal in those cases where the period expired during pendency in federal court. The Ohio court felt that Vertrue permitted “litigants [to] delay the filing of state claims in a state court for a period of time well in excess of the relevant statute of limitations by simply filing first in federal court,” while the extension approach “preserved” Ohio’s statutes of limitations. Under the extension approach, Smith’s wrongful death claims were untimely.
Until the Supreme Court resolves the issue once and for all, litigants may not be able to rely on the Sixth Circuit’s generous reading of Section 1367(d) when refiling in state court.